Rauph Bello Oseni V. Chief Lasisi Bajulu & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C.

In the Lagos State High Court, the plaintiff, who is substituted by the appellants who are the respondents in this appeal, instituted an action against the appellant. The plaintiff in the suit claimed possession of the two rooms and a parlour (a chieftaincy family property) at No.1A Bajulu Street, Isale-Eko, Lagos occupied by the defendant as tenant at will. The defendant denied the claim of the plaintiff, but asserted that the property beneficially belonged to his great-grand father Aina Adaba. The parties testified, and one of them called witnesses, after which their counsel addressed the court. The learned trial judge after appraising the evidence before him and the addresses of learned counsel found in favour of the plaintiff as follows:-

“I hold that the plaintiff succeeds and that he is entitled to the said premises. I hereby order that the Defendant shall vacate and give up possession of No.1, Bajulu Street to the Plaintiff on or before the 16th day of October, 1992.”

Dissatisfied with the judgment the defendant appealed to the Court of Appeal on six grounds of appeal. The Court of Appeal found no merit in the appeal, so it dismissed it. Again, the defendant was not satisfied with the outcome of the appeal before the Court of Appeal, so he has again appeal to this court on eight grounds of appeal.

Learned counsel for the parties exchanged briefs of argument, which were adopted at the hearing of the appeal. Two issues formulated in the appellant’s brief of argument are as follows:-

“1 Was the court below right in affirming the judgment of the trial court that the Respondent was entitled to possession of No.1 Bajulu Street, Lagos when the claim of the Respondent was for No.1A Bajulu Street, Lagos.

2. Whether the failure of the court below in re-evaluating the evidence of the Defence witnesses in relation to Exhibit K, the Crown Grant occasioned miscarriage of justice on the part of the appellant.”

Only one issue was formulated for determination in the respondents’ brief of argument. The issues reads as follows:-

“Was the court below not right in affirming the judgment of the trial court that the Respondent was entitled to possession of the premises variously and interchangeably described as No. 1 or No.1A Bajulu Street, Lagos having held that the Respondent also proved his title to the premises.”

The respondent had raised a notice of preliminary objection in their brief of argument, but at the hearing of the appeal, the learned counsel withdrew the preliminary objection, and said his objection on the appellant’s issue No.(2) remains as it is raised in this court for the first time without leave of the court. The learned counsel for the appellant did not deem it necessary to file an appellant’s reply brief of argument to counter argument in the respondents’ preliminary objection.

The uncontested first issue in the appellant’s brief of argument and its overall argument is hinged on the actual description of the property in controversy. The crux of the matter is whether the address of the property is No.1A, Bajulu Street, Lagos, or No. 1 simpliciter. It is on record that the endorsements in the writ of summons contains inter alia:-

“The plaintiff’s claim is for the possession of two rooms and a parlour premises, situate at No.1A, Bajulu Street,….

It is also on record that in their statement of claim the plaintiffs claim read interalia as follows:-

“8. Plaintiff claim possession of the two rooms and a parlour occupied by the defendant at No.1A Bajulu Street, Lagos.”

Then in his amended statement of defence, the defendant made the following denial:-

“8. The defendant denies paragraph 7 of the Statement of Claim and avers that the premises belonged to him beneficially by inheritance under the Native Law and Custom.The Defendant is unaware of and does not live in a premises known as No.1A, Bajulu Street, Lagos that belong to the Plaintiff or any other person at all.”

I will reproduce relevant pieces of evidence given by the plaintiff in respect of the description of the property in dispute to prove his case, at this juncture. The plaintiff under examination in chief testified thus:-

“When I became Bajulu of Lagos, Defendant prepared a document and forwarded it to me and asked my family (sic) No.1A Bajulu Street, Isale-Eko, Lagos. If I see the document forwarded to me by the Defendant requesting me to give him and his family No.1A Bajulu Street, Isale-Eko, Lagos, I would be able to identify it. Document shown to me is the document sent to me by the Defendant requesting that No.1, Bajulu Street, Isale-Eko, Lagos be given to him……………………..

I want the Court to grant possession of the No.1A Bajulu Street, to me to day so as to enable the Bajulu family re-build the Palace……..

……………………………………

The head of family of Bajulu by name Bakare Ogundairo build No. 1A Bajulu Street during his period as head of Bajulu Chieftaincy family………………………………………..

No. 1A Bajulu Street, Isale-Eko, Lagos belongs to Bajulu Chieftaincy family. No. 1 and No. 3 Bajulu Street, belong to the Palace of Bajulu family. But when the water rate people came the No. 1 was renumbered 1A for the purpose of tenement rate but tenement rate has now been abolished. As at now No.1A and No.3 belongs to Bajulu Chieftaincy family.”

The above pieces of evidence were not in anyway discredited in the course of cross examination of the plaintiff. Indeed, the plaintiff established that the land in controversy forms part of the Bajulu palace of the plaintiff and there was no doubt both the plaintiff and the defendant were taking about the same and one property, which consisted of a parlour and 2 bedrooms. The inconsistency in the number 1 and 1A and how it came about has been explained by the plaintiff witness in the above reproduced evidence, and this was not challenged by the defendant under cross examination. In fact, to further buttress my stance that both parties are certainly aware that they are talking about the same property is a piece of the evidence of the defendant, which reads:-

“I was born at No. 1 Bajulu Street, Isale-Eko, Lagos. My father name is Oseni Bello. My family has never paid any tenancy rent to anybody in respect of the premises at No.1 Bajulu Street, Isale-Eko, Lagos.”

In the course of cross-examination he testified thus inter alia:-

“There was no number 1A Bajulu Street.The next house to the house I am living is No. 3, Bajulu Street.”

The heavy weather made by learned counsel for the appellant on the claim in the pleadings vis a vis the decision of the two courts below is to my mind unwarranted. The fact that the respondents’ pleadings claimed No.1A and not No.1 as pleaded and testified by the appellant does not deviate from the fact that issues were not joined on the exact case to be met at the hearing of the suit, the pleadings in paragraph 8 of the appellant’s statement of defence, notwithstanding. The case of Ashiru Noibi v. R. J. Fikelati & others 1987 3 SC.105 referred to by learned counsel for the appellant in his brief of argument is not apposite to this case and the argument proffered. The most important thing is that both parties knew the property they were fighting over and in their evidence the fact has emerged that it is the same property as the description of them correspond. That the premises were next to another numbered 3 was not in issue as both parties were on common ground on this. The law is trite that evidence must be in line with a party’s pleadings, and once the evidence is not successfully challenged, it has not been contradicted and it is relevant to the matter in controversy, a judge can rely on it and make his findings based on such evidence in his judgment. See Adeleke v. Iyanda 2001 13 NWLR part 729 page 1, Aikhionbare v. Omoregie 1976 12 SC. 11, and Obembe v. Wemabod 1977 5 S.C. 115.

I am however satisfied that the learned trial judge is right in his finding when he held as follows in his judgment.

“I hold that both No. 1 Bajulu Street and No. 1A Bajulu Lane refers to one and the same place and that is the two bedroom and parlour presently occupied by the Defendant.

I am however satisfied that the learned trial judge is right in his finding when he held as follows in his judgment.

“I hold that both No. 1, Bajulu Street and No. 1A Bajulu Lane refers to one and the same place and that is the two bedroom and parlour presently occupied by the Defendant.

I am satisfied on the evidence before this Court that No. 3, Bajulu Street, is the Palace of Bajulu Street Chieftaincy Family and that No. 1, Bajulu Street, or No.1A Bajulu Lane form (sic) part of the palace of Bajulu Chieftaincy Family. I believe that the plaintiff (sic) has proved his claim to recover the said premises from the Defendant and I hold that the Plaintiff is entitled to the possession of No. 1 or No. 1A Bajulu Street, Lagos on the ground of personal use of the premises for the purposes of extension of Bajulu Palace and for the renovation of Bajulu Chieftaincy Palace.”

The above finding cannot be faulted, and it is obvious that the lower court was convinced that the trial court was correct, for in its lead judgment, the following finding was arrived at:-

“Further evidence given by the 1st Plaintiff at pages 46 and 48 of the “Records shows” he knew very well of the portion and premises he let out to the Defendant. No where did the Defendant deny occupying the premises as described by the 1st Plaintiff or in his testimony on oath occupying a premises different from the description of the Notices. To mind the Notices clearly described premises occupied by the Appellant. The question of inaccurate description of premises in the Notice was never in controversy at the hearing”

I subscribe to this as I am satisfied it was based on evidence adduced and I fail to perceive that it is perverse. Again, I will reiterate my earlier resolve that unnecessary heavy weather made by the learned counsel for the appellant about the principle of law that evidence not in support of pleadings should never be admitted is not material in the treatment of this appeal, as there is no doubt or dispute about the exact identity or description of the property in controversy. The cases of National Investment v. Thompson Organisation & Ors 1969 1 NMLR 99, Adeoye v. Adeoye 1961 All NLR 792, Cardoso v. Doherty 1938 4 WACA 78, George & Ors. V. Domimon Flour Mills Ltd 1963 1 All NLR 71, etc cited in the appellant’s brief of argument in therefore of no consequence in this appeal. Further more, the submission that the court is not a charitable organization, therefore a relief not sought shall not be granted is not applicable or relevant in the instant case.

In the light of the above reasonings the issue dealt with above is resolved in favour of the respondents, and grounds of appeal Nos 2, 3, 4, 5 and 6 fail, and they are hereby dismissed.

The learned counsel for the respondents in their brief of argument submitted that the appellant’s issue (2) based on the alleged failure to evalute evidence of Exhibit ‘K’ is a new issue, not being one of the issues submitted to the lower court for determination. He argued that for the issue to be proper the leave of court to raise it as a fresh issue, is needed and where not obtained, the issue is incompetent. The cases of Ezekude v. Odogwo 2002 13 NWLR part 784, page 366 and Obiakor v. State 2002 10 NWLR part 776 page 612 were relied upon. Where this objection arises, the appellant usually files an appellant’s reply brief of argument to counter the argument and seek to establish that it is not a fresh issue raised for the first time, and or that leave was obtained where he actually concedes that it is a fresh issue. As I have observed above, this the appellant did not do, for he did not deem it necessary to file a reply brief. In the circumstance I would say this argument is deemed conceded. As a matter of fact I have perused the briefs of arguments in the lower court and they are bereft of such issue raised. It was definitely not an issue, and so the court below did not even allude to it in its judgment. It is also not on record that the appellant sought and obtained leave of this court to raise and argue the issue. There are plethora of authorities that fresh issue raised for the first time require leave of court, and where such leave has not been obtained, the issue becomes non issue and deserves to be struck out. See Jov. v. Dom 1999 4 NWLR part 623 page 538, Nsirim v. Nsirim 1990 3 NWLR part 138 page 285, and Ezedigwe v. Nolichie 2001 12 NWLR part 26 page 37.

In this vain I strike out issue (2) in the appellant’s brief of argument. This is an appeal on concurrent findings of the two lower courts, which the law says cannot and should not be interfered with, unless the findings are perverse and not supported by credible evidence. The law is trite that the findings of court that are based on credible and unchallenged evidence that are relevant to issues in controversy must not be disturbed as they are in that circumstance, not perverse. See Lakeyi & Ors. v. Olojo 1983 8 SC page 61, Ezendu v. Obiagwu 198 2 NWLR part 21 page 208, and Obasohun v. Omorodion 2001 13 NWLR part 729 page 206.

I fail to see that there is any shortcoming in the judgment of the Learned Court of Appeal, or the learned trial Court. The judgment of the Court of Appeal is hereby affirmed. The appeal has no merit whatsoever, and so it is dismissed in its entirety. I assess costs at N50,000.00 in favour of the respondents, against the appellant.

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SC.36/2002